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Answering Landlord & Real Estate Investor Questions During the Coronavirus

Last updated September 4, 2020 @ 10:35 a.m.

RPOA has compiled a list of answers to frequently asked questions asked by landlords and real estate investors in Michigan that have arisen due to the coronavirus. This list is updated as more information and answers become available.

The RPOA office is now open to members for appointment only visits five days per week (click here to learn more). Staff is also available to assist members over the phone Monday – Friday, 9am – 4pm. RPOA members please call (616) 454-3385 if you have any questions.  

Evictions & Other Court Actions

 

Q: Can I evict a tenant? 

A: Update:  New CDC Eviction Moratorium starts September 4, 2020 and will remain in effect until December 31, 2020.  More on the moratorium here.

First, the process for evictions has been modified by Michigan Supreme Court orders with a few minor changes that will add one additional step and lengthen the timeline. The order also sets priorities for eviction cases to enable those landlords facing the most months of non-payment of rent to get into court sooner. Second, the state legislators budgeted $50 million dollars to fund an Eviction Diversion Program (EDP) with varying amounts allocated by county across the state depending on perceived need–taking into consideration the typical number of evictions for non-payment in each area.

Let’s look at the EDP first since many landlords may want to pursue that route as soon as possible to avoid going to court altogether.

Eviction Diversion Program (EDP)

Using the funds allocated to the Housing Assessment and Resource Agency (HARA) located in each county, the HARA will be able to provide direct payments to landlords where the tenant is eligible for assistance for past due rental payments incurred after April 30, 2020. (The great news is that the RPOA and other agencies were able to convince MSHDA and SCAO to enable access to the funds upon the issuance of the Demand for Possession, Non-Payment of Rent instead of the summons or judgement form as required by many other rent assistance programs.) Here’s how landlords should begin the process of acquiring assistance:

Step One: Send the tenant the Demand for Possession, Non-Payment of Rent form. (This is NOT the “Demand for Payment of Rent” form that you may have used before July 16.)

Step Two: Contact the local HARA and ask for any forms that may be needed to get the process rolling. At this point, we believe there will be two application forms required—one for the landlord and one for the tenant. A copy of the Demand for Possession will also be needed along with the payment history of the tenant. (Landlords should understand that many HARA’s are rushing to staff up and provide assistance for the EDP and may not be up and running until around August 1. Contacting the local HARA will be the best way to determine when they believe that they will be up and running. The RPOA in Grand Rapids will provide contact information for the Kent County HARA as soon as it is available.)

Step Three: After all the paperwork is complete, meet with the HARA representative and tenant. This will likely be via online through Zoom or some similar online meeting tool and scheduled by the HARA. The goal here will be to verify all the information submitted and verify need.

Step Four: If the tenant is eligible, the HARA will determine what portion of the rent will be paid with EDP funds, what portion of the balance of the rent will be paid by the tenant and how much of the remaining rent owed the landlord will be asked to forgive. (At the very least, under the program, the landlord will be asked to forgive 1/9 (.111) of the rental assistance provided by the EDP and waive any late fees or penalties. The total amount to be forgiven by the landlord will vary based upon the unit rental cost and how that compares to Fair Market Rent (FMR) in your area and the cap on rental assistance funds for the tenant. Rental assistance will only be provided for up to 150% of FMR.)

In addition, the total rental assistance available and what percentage the tenant must pay and the amount the landlord must forgive will depend on the tenants earned and unearned income (wages, salary and unemployment) and what percentage the total income is of the Area Median Income (AMI). The CARES Act stimulus check is not considered income. Here’s a table showing the total amount of assistance that can be provided based upon the tenant’s income:

Tenant Income as a Percentage of AMI Rental Assistance Available as a % of Rent Owed % of Tenant’s Obligation for Rent Owed % Landlord Must Forgive to Receive EDP Funds Amount Tenant is Eligible for Advanced Payment of Rent Rental Assistance Cap
Under 50% AMI 90% 0% 1/9 of Rental Assistance to Be Provided Up to One Month’s Rent or $1,200, Whichever is Less $3,500 for Past Due Rent, $1,200 for One-Month Advanced Rent Payment
50-80% AMI 75% 16.66% 1/9 of Rental Assistance to Be Provided None $3,000
81-100% AMI 65% 27.77% 1/9 of Rental Assistance to Be Provided None $3,000

For the amount the tenant owes, a 12 month or other payment plan will be negotiated with the landlord.

Depending on the tenant’s income, they may be eligible for additional assistance through ESG or SER program funds that may enable them to pay rent arrearages prior to March 1. Case management will also be provided for three months for those tenants earning less than 50% of AMI. Also, when calculating the tenant’s income, the income for April, May and June will be used to determine total income earned and where it fits into the AMI guidelines.

With all of that said—the EDP is completely voluntary for landlords. If a landlord does not wish to participate, they can follow the NEW eviction summary proceedings process for non-payment of rent, obtain some form of money judgment and go through the normal physical eviction and collection process.

New Court Procedures for Evictions Starting July 16

All evictions will start with the proper notice, e.g. the Demand for Possession, Non-Payment of Rent form for non-payment of rent. The same notice period will apply, generally speaking, 9-days if the notice is served via first-class mail. Once the notice period is up and the landlord has not negotiated a settlement utilizing the EDP, the complaint along with other necessary documents must be filed in the appropriate district court. These documents must include a CARES Act disclosure for non-covered properties.

Now, here’s where things become different from the previous eviction process. Once the complaint has been filed, it will be prioritized based upon the amount owed or other circumstances related to the case. The priority for how cases will be heard will be based upon the following, from first to sixth:

First priority: complaints alleging illegal activity under MCL 600.5714(1)(b),
and complaints alleging extensive and continuing physical injury to the premises
under MCL 600.5714(1)(d), complaints alleging that the tenant or someone in
the tenant’s household has caused or threatened physical injury to an individual
while on the leased property under MCL 600.5714(1)(e), and complaints
alleging that the tenant is trespassing or squatting under MCL 600.5714(1)(f).

Second priority: complaints alleging nonpayment of rent for 120 days or more.

Third priority: complaints alleging nonpayment of rent for 90 days or more.

Fourth priority: complaints alleging nonpayment of rent for 60 days or more.

Fifth priority: complaints alleging nonpayment of rent for 30 days or more.

Sixth Priority: All cases described in First Priority through Fifth Priority that
are filed after a court has moved to the next priority designation, and any case
for recovery of possession of premises where the complaint alleges nonpayment
of rent of less than 30 days. Cases filed in a lower numerical priority designation
(e.g., a second priority case filed during a court’s priority five period) shall be
given first consideration in order of priority.

Landlords may request that a court consider an earlier termination case if the landlord can substantiate could good cause for reasons of public safety or other just causes, including but not limited to matters brought under MCL 600.5775. In other words, if the tenant is carrying out illegal activities or where the police have been called numerous times to the property for activities not included in priority one.

All cases filed will be heard in order of this prioritization—meaning that, for example, a case with 60 days past due rent will be delayed until ALL cases for priorities one through three have been scheduled. One can only imagine how long this process will take and will likely depend on which district court must hear your case…it could be weeks or months. The good news is that the cases with the most rent due will be heard first after the first priority cases have been filed and scheduled for hearing.

In addition to the above prioritization of complaints, once a complaint reaches the priority phase to initiate the start of the hearing process, a summons will be sent to all parties for a “pre-trial” initial hearing. The pre-trail hearing IS NOT the normal hearing where the case is decided. The pre-trial will be held with the tenant and landlord to inform parties of their rights to counsel, available assistance (e.g. the EDP), availability of dispute resolution programs and the possibility of a conditional dismissal of the case. Once this hearing has been completed, the case will be adjourned for seven days to allow for the tenant and landlord to seek counsel, resolution or assistance with past due rent. (The case will not be adjourned for seven days if the landlord dismisses the complaint or where the tenant fails to appear at the pre-trial and was personally served or where a consent agreement is reached where both the tenant and landlord have representative legal counsel.)

If the case is adjourned and seven days has elapsed, the hearing date will be set (the hearing that would normally be held to decide the case). Landlords should be alert to the fact that based upon the restrictions on the courts due to COVID-19, hearings may be delayed well beyond the typical 10-day period. Each court will be handling cases in their own way—some will hold all hearings via Zoom or similar remote meeting tools or in person or some combination of both. Where one or more of the parties to the case cannot participate remotely, an in-person proceeding will be scheduled. (In-person proceedings will likely be delayed even longer due to restrictions.)

Once the hearing is heard a judgment will be rendered. Judges have been instructed to apply the law liberally—which means to give the tenant a lot of leeway. This could result in an increase in the number of days given to a tenant to move or pay past due rent. This also may mean that the judge may render decisions that include only part of the total rent owed.

Orders of eviction (the physical eviction of the tenant from the property) may also experience delays due to whatever the current COVID-19 executive orders allow or don’t allow regarding personal contact, distancing, etc.

At this stage of the game—which is very early—it’s really hard to predict exactly how all this will play out. Some courts have not yet come up with a game plan. Furthermore, tweaks for the EDP and how the courts will handle cases are likely to come as strengths and weaknesses in the process are discovered. With that said, keep in mind that anything included in this article could change—we’ll do our best to keep you informed as those things happen.

You’re probably asking yourself—should I negotiate a pre-court lump sum payment through the EDP if that is possible or go for the full judgment and eviction? That is a very good question—one that can only be answered by looking at your business needs and weighing your chances of success. We strongly encourage members with several months of past due rent or other issues involving drugs, threats of violence, or other activities that threaten the public or other tenants’ safety to seek legal counsel. Of course, if your properties are owned in an LLC, you’ll likely have no choice but to use an attorney. Two to three hundred dollars may be money well spent when attempting to collect several months of past due rent or where the tenant is a serious problem.

(A word about consent judgments under the current executive and administrative orders: At the “pre-trial hearing,” a consent judgment will only be allowed where the tenant AND the landlord have legal counsel. The reason given to the RPOA for this is that under current law, if the parties are not represented by legal counsel, either party could decide that they didn’t understand the consent agreement and challenge it to have it overturned or reheard sometime in the future. The RPOA’s understanding is that if both parties have legal counsel when the consent agreement is entered into and filed as part of the case that neither party can “appeal” the consent agreement. This sounds like a good thing. If a tenant fails to abide by a consent agreement in this case, the landlord or their attorney can file an “Order for Reinstatement of Case and Entry of Judgment.”  Once a case reaches the “normal” hearing (2nd hearing), neither party needs a lawyer to enter into a consent judgment.)

Q:  Doesn’t the CARES Act prohibit certain evictions as well?

A:  Yes.  The CARES Act prohibited evictions for non-payment of rent until July 24 where the property is:

1. Under a covered housing program (as defined in section 41411(a) of the Violence Against Women Act of 1994 (being 34 USC 12491(a)).
2. Part of the rural housing voucher program under section 542 of the Housing Act of 1949 (42 USC 1490r).
3. Backed by a federal mortgage loan.
4. Backed by a Federal multifamily mortgage loan.

The CARES Act eviction moratorium was lifted on July 25.  A 30 day notice is required to eviction tenants for non-payment, meaning that no cases may be filed until August 25.

Q: If a notice to quit, etc. was served prior to the eviction moratorium, will the notice have to be re-served after the moratorium is lifted? How long is a notice good for before it has to be redone?

A: Existing notices remain valid and re-service is not required. If you accept rent from tenants, particularly those on a month-to-month basis, landlords should consider service of an updated notice following the lifting of the existing Executive Order to ensure that the tenant does not raise a legal defense at the hearing.

Q: If a complaint was filed before the eviction moratorium was put in place but the case was not heard, do I have to file a new complaint?

A: No, the State of Michigan has administratively adjourned the deadlines normally requiring prompt hearing of eviction/forfeiture matters. Your complaint remains on the court’s docket and will be re-noticed for hearing once the State of Michigan lifts the moratorium.  The court should send the landlord/manager a form to update the complaint.

Q: If I received a possession judgment before the eviction moratorium, what is the latest date I can execute a writ? What happens if I can’t execute the writ within this time frame before the moratorium is lifted? Will I have to start all over again?

A: You cannot personally serve or execute a writ or conduct an eviction during the moratorium, except for the allowable evictions under the executive order. The State of Michigan has administratively adjourned the deadlines normally requiring service of the writ which would otherwise require execution within 56 days of its issuance. Landlords should have an issued writ executed within 56 days following the lifting of the moratorium.

Q: Can I serve notices on my CARE covered properties even though there is a moratorium on non-payment evictions? 

A: Yes, evictions for anything other than non-payment of rent are allowed under the CARES Act moratorium.

Q: Can I still file a small claims action in court? Will there be delays for small claims hearings?

A: Yes, you can file small claims court actions on a jurisdiction-by-jurisdiction basis but those filings are likely not to be processed or heard until the courts reopen.

Repairs & Maintenance

 

Q: Can I repair damages or broken items in a rental?

A: Yes. However, care should be taken to use safety practices that prevent exposure to the virus for all involved, including the tenant.

Q:  Is the City of Grand Rapids enforcing exterior code violations?

A:  Yes…to an extent. The RPOA was informed that the City of Grand Rapids will continue to enforce outside and interior violations where they pose a health and safety concern. In the answer to what that might include from an exterior point of view, the city noted some of the following:

Bags of trash.
Chipped paint on the ground.
Broken windows.
Damaged roofs that may cause structural damage or where it is causing leaks into the property.
Piles of brush, wood, etc. that might harbor rodents.
Overgrown shrubs or trees blocking sidewalks.

What the city noted was not considered an immediate concern (at least not yet) are leaves and tall grass. The city also acknowledged that the Governor’s executive order specifically states no landscaping work.  (However, this may change as of April 30.)

Update as of April 22, 2020:  Starting April 22, the City of Grand Rapids will no longer automatically respond to complaints from the public for housing violations and will analyze complaints in more detail generated by city staff. The new approach, as explained, will take the city back to how things were done 20+ years ago.

City inspection staff will meet (virtually) as a group and look at every complaint generated individually to determine a course of action. Each complaint will be looked based on the seriousness of the violation and the extent of exposure a landlord or their contractors would face carrying out the work. The city explained they want to use commonsense when deciding what needs done to protect everyone to the greatest extent possible.

Q:  Are cities still carrying out rental inspections and certifications?

A:  Cities are planning to restart inspection soon.

The City of Grand Rapids will begin rental certifications again on June 15. Rental certification inspections will be done with some new stipulations. The City staff will be wearing full PPE and only four people may be present at the inspection (per State recommendation) which includes the inspector, the occupant and owner/manager. Owners/managers and anyone present will be required to wear a mask during the inspection. (Tenants do not have to be present. However, tenants must give permission for the inspection.) City staff will be asking everyone involved if they are ill or have been in contact with someone who had or has COVID-19, and if the answer is yes, the inspection will be rescheduled. There will be no penalties for rescheduled inspections. The City is also looking into doing re-inspections (those after the initial inspection) virtually through Microsoft Teams. The City informs the RPOA that updates to this information will be provided on their website.
There is a significant backlog of inspections–so it may be a few weeks or months before a property is inspected. Landlords and managers should contact the City and schedule their inspections as soon as practical. Certs have been extended for the number of days that the executive orders disallowing inspections were in place.

Wyoming – All non-complaint based rental inspections are cancelled through April. Regular certification rental inspections are currently scheduled to begin again June 1 (as of April 27); however, we continue to look to the Governor’s Executive Orders for direction and as such, this may change. Complaint based investigations continue based upon individual circumstances including type, severity, and public safety risk. Staff are implementing wearing of gloves for interior inspections and maintaining social distancing of 6’, hand washing protocols, etc. consistent with the CDC, Health Department, and our City Risk Controller’s direction.

Kentwood – COVID-19 UPDATE: All inspections (building, mechanical, plumbing, electrical, and rental) are suspended until further notice to prevent the spread of COVID-19 and protect both Kentwood residents and City employees from potential exposure. Additional updates will be provided on our website. Notices requesting landlords to reschedule rental inspections will be mailed with a reasonable time frame to make arrangements when it is advised and safe to do so by the Kent County Health Department. Policies are changing rapidly as more information becomes available on this novel coronavirus and continue to be subject to swift change. Thank you for your patience and understanding as we navigate these unprecedented times. Rental inspections will likely be one of the last services that are reinstated by the City in line with a full reopening of the economy.

Q: What if I’m an “at risk” person and I need to do work necessary to keep a rental safe and in a healthy condition?

A: You can use a professional person that is considered a critical infrastructure worker or designate another person (where licenses are not required to do the work) as a critical infrastructure worker and have them complete the job. Any work done by anyone should be done following the published guidelines to protect everyone from exposure to the virus.

Q: What if a tenant refuses to let me or a critical infrastructure person into a rental to do work that is necessary to maintain the unit in a safe and habitable condition? 

A: We don’t know the specific answer to this question with the current moratorium on evictions. However, we would suggest contacting the police department’s non-emergency line (not 911) to get guidance on what may or may not be done or to get assistance with gaining access.

Yard and Waste Cleanup

 

Q: Can I do yard cleanup at my rentals, send out an employee or my lawn care service to do this type of work?

A: Yes.

Q: Will my trash removal service to be operating?

A: Yes, sanitation activities are allowed.

Showing and Leasing Properties

Updated:  May 21, 2020, 7:56 a.m.

Q: Can I show a property to a prospective buyer?

A:  Yes.

Q: Can I still take rental applications and screen tenants?

A: Yes.

Q: Can I show rentals to prospective tenants?

A: Yes!  Following all the other safety precautions under the stay at home order should be followed, i.e. distancing of six feet and wearing mask and doing as much of the work remotely as possible.

“Virtual tours” are also another option.  Services providing those capabilities can be found online.

Q: Can I do what is necessary to lease a unit and move in a new tenant?

A: Yes.

Q: Can I do what is necessary to move a tenant out?

A: Yes.

Q:  Can I do move-ins/outs and execute leases?

A:  Yes.

Rental Payments and Security Deposits

 

Q: What is the RPOA’s position on reduced and/or deferring rent?

A: With record numbers of unemployed people and with deep losses of income for many workers, it is inevitable tenants will face issues with paying rent. While every rental property owner and management company must make their own decisions taking into account their financial situation, the RPOA is encouraging members to seek a way to soften the impact of upcoming rental payments and attempt to avoid future evictions. One way of doing this would be to simply discount the rent temporarily. However, the RPOA would suggest, for those tenants facing an employment/income hardship, that deferring part of the rent until a future date would be a better approach. In other words, reduce the rent now and add it to future rent payments. Getting a little money now is better than nothing and not letting the tenant off the hook for the full rental amount is just good sound business sense.

A survey conducted by the RPOA on April 15 found that 76% of rents were paid in full, 7% made partial payments.  The main reason given for situations where partial rent was paid or no rent was paid was due to employment loss or income reduction due to COVID-19.

Q: Will I ultimately be able to collect unpaid rent?

A: Currently, the answer is yes. The executive order states that “nothing in this order shall be construed to abrogate the obligation to pay or right to receive payment due under a lease…” At some point in the future, you’ll be able to go to court. Keep in mind though, it could take months to go through the backlog of eviction cases.

Q: Do the time frames for returning security deposits differ under the executive orders?

A: No, all the same time frames for returning security deposits and sending out notices of damages are the same. Executive orders only affect evictions. (See the latest executive order regarding evictions here.)

Other Questions

 

Q: Is the RPOA doing anything at the state level to soften the blow for landlords?

A: Yes. The RPOA is also working with the Governor’s office to put in place financial assistance for tenants that were unable to pay rent due to loss of employment or a cut in wages due to COVID-19. No support is planned for those tenants that participated in the “rent strike.” The process will likely work very much like existing eviction prevention programs where the landlord receives payment of rent from a third party and the tenant is allowed to remain in the unit and the eviction case is expunged from their record. Additional resources to assist with past due rent are being sought by the State and may come from the Federal government. At this point, landlord participation is expected to be voluntary. However, landlords need to understand that financial payment from a third party would not be forthcoming if they choose not to participate.

More information will be made available as the RPOA learns about next steps, etc.

Q: Can I do other business activities that are not specific to repairs or moving a tenant in or out of a rental unit?

A: Yes.  Workers may return to the office if they cannot work remotely or are critical to the business operation and need to be at the office in person.  Any business or operation that requires its employees to leave their home or place of residence for work is subject to the rules on workplace safeguards in Executive Order 2020-97 or any order that may follow from it.

Q: Can I go to my rental property to deal with disturbances that are impacting other tenants?

A: Yes…as long as safeguards are taken to prevent the spread of the virus.

Q: Is construction allowed under the executive order?

A: Yes.

Q: Will my RRP certification be extended if there isn’t a refresher course available for me to take before my re-certification date is up?

A: At this time, we are not aware of any notification from the EPA on this issue. We recommend that those in this situation contact the EPA and ask this question and for clarification. As of now, the RPOA plans to resumes it’s refresher courses in June but the number of registrations will be restricted to comply with the six foot distancing guidelines.

The RRP refresher course is available online. You can find more information about online refresher courses here.

Q: How can I get forms from the RPOA office?

A: For the most part, just about every form that you can currently use is available online through the RPOA website. These forms are free and fillable. If you need hard copies of forms, we should be able to accommodate that with a slight delay.  Forms may be ordered and picked up at the office T-TH up and until July 17. Starting July 20, forms may be ordered and picked up M-F.  Please call in advance as entry into the office is by appointment only.

Q:  Can I rent out my short-term rental?

A: Yes.  Vacation rentals were specifically listed as not allowed in the previous stay at home order. That order was rescinded and completely replaced with the latest order on June 1 which does NOT include any restrictions on vacation rentals or hotels. We’ve conferred with the Michigan Association of Realtors to see if they agree with us–and they do. Everyone should note that locals may put restrictions in place. So, it is important to check with the municipality you are located in–and perhaps the health department as well.
It is recommended that units should be left vacant for at least 24 hours between guest and guidelines should be followed for cleaning between guests. Contact free entry is also recommended so that no one needs to personally greet or meet guest upon arrival.

Q:  Can I insist that my employees do their work?

A:  No. Governor Gretchen Whitmer signed Executive Order 2020-36, prohibiting all employers from discharging, disciplining, or otherwise retaliating against an employee for staying home from work if they or one of their close contacts tests positive for COVID-19 or has symptoms of the disease. Executive Order 2020-36 also strengthens the governor’s “Stay Home, Stay Safe” executive order by declaring that it is the public policy of the state that all Michiganders who test positive or show symptoms, or who live with someone who tests positive or shows symptoms, should not leave their homes unless absolutely necessary.

Executive Order 2020-36 will remain in place until the end of the governor’s declared emergency or until otherwise rescinded.